The Selective Deportation of Same-Gender Partners: In Search of the "Rara Avis"

01 Jan 2002

This article seeks to explore the possibility that a selective deportation of a same-gender partner who has overstayed her visa constitutes an outrageous case under the AADC test. Its modest goal is to discourage the INS from ever pursuing such a strategy, knowing that there are probably many who believe that same-gender overstays, even if civilly united in Vermont, are not the ideal candidates for "suspect class" status under U.S. constitutional law. That notwithstanding, common sense and sound doctrine suggest that, despite the many anti-gay and anti-immigrant decisions handed down over the last twenty years, the Court will not hesitate to halt egregious government conduct when the plaintiff is being deprived of equal rights and there is no legitimate countervailing reason to justify the discrimination. In the hypothetical mass deportation of same-gender overstays, this Article applies such an approach while breathing life into the as-yet-unidentified "outrageous" exception test created by the AADC Court.